Disloyalty Toward Employer to Win Paid Sick Days Protected

On this National Day of Disruption, when thousands of employees in major cities across the nation engaged in “Fight for $15” protests to raise the minimum wage to $15, it is only fitting and proper, as lawyers say, to write about an employee protest relating to paid sick days. Earlier this year, the Eight Circuit Court of Appeals decided such a case. MikLin Enterprises, Inc. v. NLRB (8th Cir. March 25, 2016).

The protest was part of a labor dispute. A union had been trying to organize employees of a Jimmy John’s Minnesota franchisee for years, without success. A group of employee/union supporters placed posters in various public places within two blocks of each location, encouraging readers to support their effort to “win sick days.”

The poster featured photos of two identical sandwiches, noting that the sandwich on the left had been made by a “healthy Jimmy John’s employee” while the other had been made by a “sick Jimmy John’s employee.” The poster stated that it was “too bad” if a reader could not tell the difference between the two sandwiches “Because Jimmy John’s Workers Don’t Get Paid Sick Days. Shoot. We Can’t Even Call in Sick.” The poster added: “We Hope Your Immune System is Ready Because You’re About to Take the Sandwich Test.” The poster seemed to convey the “flu with your fries?” offer, albeit with your sandwich rather than with your fries. The employer discharged the “leaders and developers” of this “Sandwich Poster” campaign. Thus began five years of litigation.

The National Labor Relations Act gives private sector employees the right to engage in protected concerted activity for their own mutual aid and protection. Employers may not punish employees for engaging in such activity. However, if the employee’s activity is sufficiently false or disloyal, the employee loses the NLRA’s protection.

The employer argued that the poster’s content was materially false and misleading because employees had called out sick and was so disloyal and disparaging that those terminated lost the protection of the NLRA. The clear message of the poster, the employer said, was that consumers “were at risk by eating its sandwiches, greatly exaggerating the potential public health problem.”

The Eighth Circuit, by a 2-1 vote, upheld the decision of the National Labor Relations Board, which administers and enforces the NLRA, that the contents of the poster were “not so disloyal or recklessly disparaging as to lose [NLRA} protection.’ Concerning the “false and misleading” argument, the Court said that the contents were “exaggerated rhetoric,” which is “common in labor disputes and protected under the [NLRA}.”

The primary lesson from the MikLin case is a caution to employers that employees have the right to ban together and protest not just for increased wages, as in the “Fight for $15” campaign, but about any term or condition of employment, including paid sick leave .